32 F. 237 -

32 F1d 237

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Case Text

THE C. H. SEUFF.

237

we have rule 38 in admiralty of the supreme court. The result of these seems to be that the libel may be:in rem, iIi form against the proceeds, with a petition under rule 38 to bring the proceeds into court: or it may be in personam, in form against the holder of the proceeds; but that in either case it is, in reality, an action in rem. In this case the libel is in form against the proa petition under rule 38. It may ceeds, and the holder of the proceeds, be concluded, therefore, that the court has obtained jurisdiction of the proceeds. No sufficient cause having been shown why the proceeds, orso much thereof as are necessary to satisfy libelant's claim and the costs herein, should not be ordered paid into court, that order should be made. There is no dispute but that, if libelant has. a lien on the proceeds enforceable in this court in this proceeding, he should have a decree, and there is no dispute as to the amount. 'fhere is therefore no necessity to refer the case for computation. H. D. Gaulder, for respondent. Upon the questions whether this money was the proceeds of the vessel, and whether libelant had a lien thereon, WELKER, J., found that the money in the hands of Goulder was the proceeds of the sale of the remnants of the vessel; and that the libelant had a lien upon the said proceeds in the hands of Goulder, the same as he would have had against the vessel for his unpaid wages, and was not bound to receive the Tala amount thereof; and decreed that Goulder should pay to hini the amount of his wages.

Pro

THE

C. H.

SEUFF}

NEW YORK,

L. E. & W. R. Co. v.

THE

C. H.

SEUFF.

(Di8trict Oourt, S. D. New York. June 21,1887.)
1.

COLLISION-Tow AND FERRY BOAT-RULE OF THE STARBOARD HAND-SPECIAL RULE-DUTY TO STOP AND BACK-RULE 21.

As the tug S. was coming down the North river, she saw, according to her witnesses, the green light of the ferry-boat Po, some tWQ points on her starboard bow. She whistled twice, and the P. once, whereupon the 80 stopped and backed. The witnesses for the ferry-boat testified that they saw ahead the green light of the S., a little off the port bow; that one whistle was given her, and then a secondsillg1e blast, to which the S. replied witb,two; that at the last signal the P. had commenced to round into her slip, and she continued on at full speed, until struck by a railroad float which the S. was towing. The roundingteourse of the ferry-boat was known to the pilot of the B. Held that, as the ferry-boat and her course were recognized by the S., the latter was bound to have avoided her, not only under the general rule of the starboard hand, but also under the special rule relating to ferry-boats approaching their slips; and, for attempting to cross ahead of the P., the So was in fault. Held. al8o, that the continued view of the green light of the So on about the same bearing should have indicated to the P. that the B. was swinging across her course, and was such e"idence of "risk of collision" as made it obligatory upon the P. to stop and back, under rules 21 and 24; that for failure to do so she was also in fault.

'Wilcox, Adams « Maoldin" for libelant. Hill, Wing« Shoudy, for claimant.
BROWN,J. At a few minutes past 7 P. M., in the of October 12,1885, as the steam ferry-boat Pavonia, bound from Pavonia fetry, Jersey City to NewYork, was rounding to make her slip at TwentyThird stt:eet, North river, she 'Vas struck near her wheel-house by the starboard bow pf 111 large railroad float, coming down river in tow and' alongside of the steam-tug Charles H. Seuff. Both boats sustained some damage. The testimony is quite irreconcilable as to 'the general bear. ing of the. boats from each other, and the lights that were visible by each. The conflict, however, can be partly explained by the different positiopsofthe boats at different times, arid the probably imperfect statemept in regard to the ligl:1ts that were visible during the entire time they ought to been, seen." There is co»si,derable difference in the estimateofthe distance of theplaca of collision from the New York shore. It probll.bly from 600 to feet, and abreast of Twentieth or TwentyFirSt The witnesses all agree that the current was ebb, near the New York shore. Numerous witnesses for the Pavonia that after leaving Pavonia ferry, which is one and three-quarters miles further down the river than Twenty-Third street ferry, theferry-boat worked gradually up and across the river, until, when abreast of Thirteenth street, she was within about 400 or 500 feet of the New York shore; that there her wheel was starboarded'sotn.ewhil.t, SO'RSto haul off a little further'fromthe shore, preparatory to rounding into the slip at Twenty.Third street; that, when opposite abou1iSixteenth street, the green and white lights of the Seuft' seen ab,qut two points off the port bow, to the westward of the mid 7 Jle of the ri,'er,' and from a. quarter to half a mile distant; that a signal ofone whi8tlewas given her, but, not receiving any answer, a second similar whistle was given soon afterwards, to which a relily of two blasts ;(rom the Senti' was received; that no 6th,er signals were given or heard; that the Pavonia, at the last signal, had commenced to round to make per on atfl111 speed,:or about 10 or 11 knots, until the all ,the time seeing the green-cqlored light only of the Seuff, which seemed to be following them up to the eastward., · " ,The witnesst)sonthe part of the Seuft'state that, coming out from Thirty-Third street pier, after passing 'totbe westward of a man of war anchored nea:rly in mid-rivl:ll' ,off Twenty-Sixth street, she headed nearly down river, and. only a little to the ,eastward, and, when off TwentyThird street, sa.wthe green light of the Pavonia a couple of points, on her starboardbo'wi' that she ga.ve the Pa'vOliiaa signal of two whistles, and got an answer of one blast, whereupon she slowed and stopped, and backed until the coHisi9u,whenas heu<Jway stopped.

,TilE C.Il.

239

The pilot ofthe Seuff WaS with the J.:oute ¢ phePavonia ferryand tl;1e boats; he recognized the Pavonia, and general ordinary course ·of such boats in rounding into .the slip. It is probable that the green light only of the Pavonia may have been visible to the Seuff for a few minutes, while she was under a starboard helm in going above Thirteenth street; but before that her red light or possibly both colored lights, must have been visible to the Seuff as she came from Twenty-Sixth street downward. But whatever may have been thelight seen at that moment, as thePavonia and her destination were recognized, her cow/'se :was the turn necessary for her to tak.e in entering her slip as usually practiced. 'fhe Seuff, according own testimony, had her on the starboardhaud, and was tq a;vpid her under the general rule, as well also as under t}1e special rule a,pplicable to ferry-boats approaching their slips. The John S. Darcy, 29 Fed. Rep. 644, 647, and cases therec;ited. The Seuff, being at a safe distance, near the middle of the river, in starboarding her wheel, as she manifestly did in order to come nearer to the New York shore, voluntarilY', and without justifiable cause, undertook to cross the known' and necessary path()f thePavonia in making her slip. The pilot pr,obably thought the Pavonia was sufficiently distant to enable him to do ,this safely'. He was mistaken, though he starb()arded so ml,lch as to bring the tug and tow considerablyout"of ,her "tb:tlle eastward 'at the time of the collision; There was,plenty of room to the westwardunobstr\lcted,andhe had no reason to,suppose that the Pavonia would continue so far out in the stream as to in his passing her. port to port. . If she was at any time t":"o or three poihtS on the Seuff's starboard boW', lam satisfied it'was only because the Seuff was headed considerably more than her witnesses admit towards the New York shore". '1 must hold-the Seuff, therefore, to blame for undertaking to cross the known course of the ferry-boat, instead of keeping out of her way, a5,sheshoo.ldhave done. The John S. Darcy, While the principal fault is, doubtless, chargeable upon the Seuff, for the reason above stated, I find it impossible to hold the Pavonia free from blame, keeping in view stringent to a.void collisions andotherperlls to life and property which this Gourt cali lieverrelax. For a cO,nsiderable time before the colliSIon the green light was seen from the ferry-boat to continue llpon apolit the same bearing. This was evidence to the Pavonia for a considerable time that theSeuff was ,swinging to the eashva,rd, since the Seuff must h\!.vebroadened off the Pitvouia's how. The courses of the two boats were t}1e,r,efore dearly crossing, and the coutinued absence of the Seuff'sredlight from sight, when the boats had approached of a mHe ()f,eacn other, it seems to me, was such clear evidenoe ofa "risk of colljsiqu" as .made it,obligatory upon, the ferry-boat to stop and back, under the "twenty-first 'rul'e of navigation. Though the "Pavoniamight"keep her eourse," she was not absolved from backing, as requiredbytha:t To.le and by rule 24, whentlHl.t 'became necessatyin ol'der.to ayoidcopision ··
swpra. , , "", '." ,

240

FEDERA.LREPORTER·

. The,-Gdl11eo,' 28 Fed. Rep. 469,473; The J. S. Darcy, supra; The Aurania,' '29 Fed. Rep. 98, 124.
A vessel cannot be held blameless in disregarding a statutory rule, except .where it is entirely cleat that a. timely obedience of the rule would not have avoided the collision, and that the only chance of escaping collision, or of lessening the damage, was a departure from the statutory requirement.This is by no means clear in this case. It must, moreover, be inferred from the testimony that the inspector's rule requiring an exchilhge of whistles when vessels. come within half a mile of each other was not promptly observed; nor could there have been a seasonable repetition of signals by the Pavonia, as was required, on the Seuff's failure to before the two blasts from the Seuff, when the collision was So The damages and costs must therefore be divided.

As a schooner was approaching New York harbor, she was run into and sunk by the steamer K ·. The schooner;'s witnesses testified that from time the steamer's lights were sighted, the schooner's course was never altered until the collision, and that her red li/!:ht was continually exhibited to the steamer. The evidence for theK. showed that the green light of the schooner was first seen a little on the steamer's port bow, whereupon the latter ported j that, when the schooner's light had come to' bear over the starboard bow of the steamer, the schooner ported, and this change ofnelm brought her under the bows of the K. Held, that the schooner was alonerespqnsible for the

F1'ederiA;k Dodge, for libelants and appellants. R. D. Benedictj for claimants and appellees.

The opinion of the district coqrt in this case (28 Fed. nep. 829) affirmed withont opinion.
JReported by Edward G. Benedict, Esq., olthe New York bar.